Adultery in Military Marriages: What Happens if You Cheat?

Last Updated on March 1, 2024 by Turner Thornton

Marriage is hard, but marriages in the military can be even more difficult. Between the relocations, long deployments, and the stress of the job, it’s not uncommon for service members to seek comfort and companionship outside their marriage.

But in the military, adultery is not just a marital issue. It is also a crime.

In this article, we discuss adultery in military marriages, including possible consequences for the service member involved and how that differs from infidelity in a “regular” divorce in Texas.

Extramarital Sexual Misconduct in the Military

Understanding Adultery in the Military

When someone joins the military, they agree to hold themselves to a higher moral standard. This includes not only obeying state and federal laws but also following the Uniform Code of Military Justice (UCMJ).

The UCMJ is a set of laws passed by Congress to govern the military justice system. It applies to all members of the United States Armed Forces and outlines legal standards, procedures, and punishments for various offenses. One of the offenses in the code is “Extramarital Sexual Conduct” under Article 134, formerly known as “Adultery.”

Article 134 makes it a crime for military personnel to engage in sexual conduct with another person of the same or opposite sex who is not their spouse. Sexual conduct includes:

(a) genital to genital sexual intercourse;
(b) oral to genital sexual intercourse;
(c) anal to genital sexual intercourse; and
(d) oral to anal sexual intercourse.

For it to be criminal, the conduct must also be “prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces.” In other words, the conduct must have a negative impact on the military, injuring its reputation or undermining its authority.

Punishment for Adultery in Military

Punishment for Adultery in Military Marriages

In the U.S. military, extramarital sexual conduct is serious and can result in severe consequences under the Uniform Code of Military Justice (UCMJ). The maximum punishment can include a dishonorable discharge, forfeiture of all pay and allowances, and up to one year of confinement. For less serious cases, punishment could include a reduction in rank, administrative disciplinary action, partial forfeiture of pay, or administrative separation.

The military’s approach to handling cases of extramarital sexual conduct has evolved over time. With changes implemented by the Military Justice Act, the UCMJ no longer uses the term “adultery” but refers to “extramarital sexual conduct,” which includes a broader definition of sexual activities beyond just intercourse. This update reflects a gender-neutral stance and acknowledges the diversity within the ranks, including the recognition of same-sex marriages.

Furthermore, the revised UCMJ now allows for “legal separation” as an affirmative defense in cases of adultery in military marriages. This means if both parties involved in the conduct are either legally separated or unmarried, it could be considered a defense. However, this defense has limitations and does not apply if one party is legally separated and the other is still married.

It’s also worth mentioning that the decision to charge a service member with extramarital sexual conduct involves several considerations, including the impact on military order and discipline, the misuse of government resources, and the involvement of other UCMJ violations. Commanders have discretion in these cases, weighing the specific circumstances and the evidence available.

These regulations underscore the high ethical standards expected of military personnel and the potential legal ramifications of violating these standards.

Military Adultery Defense

Extramarital Sexual Misconduct Defenses

Legal Separation

“Legal Separation” as an affirmative defense in cases of adultery within military marriages marks a significant evolution in the handling of such matters under UCMJ. It allows service members to present evidence that they were legally separated from their spouse at the time of the alleged conduct. This can significantly alter the outcome of proceedings, as the UCMJ has traditionally held service members to strict standards regarding marital fidelity, with adultery being a punishable offense if it’s deemed to undermine discipline and order within the military ranks or bring disrepute to the armed forces.

The application of “legal separation” as a defense, however, is nuanced. Both parties involved in the extramarital conduct must either be legally separated or unmarried for this defense to be valid. This means that if one party is legally separated and the other is not, this defense might not hold. The defense hinges on the idea that if both parties are separated or not bound by marriage, the conduct may not have the same implications for military order and discipline or the reputation of the armed forces.

Importantly, when a service member is legally separated, it means they have obtained a legal status granted by a court that permits them to live apart, dividing their assets and responsibilities while remaining legally married.

Mistake of Fact Defense

In the military context, a “mistake of fact” defense for someone accused of extramarital sexual conduct could involve the accused believing, under honest and reasonable circumstances, that they or the person they were involved with was not married. If this belief is deemed reasonable, it may negate the intent required for such a charge under the Uniform Code of Military Justice (UCMJ), potentially leading to an acquittal or reduced charges

Adultery in a Texas Civilian Divorce

Unlike in the military, adultery in a Texas civilian marriage does not carry criminal penalties, and people don’t usually lose their careers over it. Instead, it is treated as a civil matter.

Texas is a “no-fault” divorce state, which means that a divorce can be granted without one party having to prove that the other party was at fault for the breakdown of the marriage. Instead, the spouse filing for divorce only needs to cite “insupportability,” which refers to discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. This provision allows for the dissolution of a marriage without the necessity of airing personal grievances or wrongdoings in a public court.

However, while Texas allows for no-fault divorces, the state also permits fault-based divorces, where one party alleges and proves specific grounds for divorce, such as adultery, cruelty, or abandonment. In regards to adultery, if one party can prove that their spouse was unfaithful, it could potentially affect the outcome of the divorce in terms of property division and possibly alimony, though it generally does not impact child custody unless the adultery directly affected the children’s well-being.

When proving adultery in court in Texas, it requires more than mere suggestion or innuendo; substantial evidence such as bank statements, text messages, or emails might be needed. The court’s main goal in property division is to achieve a division that is “just and right,” which doesn’t always mean an equal split. If adultery is proven, the court may decide to award a larger portion of the marital assets to the non-adulterous spouse, especially if marital funds were used in the affair. However, proving adultery and its impact on the marriage can be complex and requires a clear demonstration that the adulterous behavior had a significant effect on the marital relationship or marital assets.

The stark difference between the consequences of adultery in military marriages and adultery in civilian marriages underscores the unique challenges faced by military personnel and their families. Not only must they navigate the ordinary strains on marriage, but they also have to contend with the additional layer of military law and its potential impact on their careers and lives. For military couples dealing with infidelity, the stakes are high, both personally and professionally.

Headed for Divorce Due to Infidelity? Contact Us.

Is your marriage headed for divorce due to infidelity? Varghese Summersett is here to guide you through this challenging time. Our experienced attorneys understand the intricacies of Texas divorce law and are committed to protecting your interests, assets, and family. Don’t let the stress of divorce overwhelm you. Reach out to us for a consultation, and let us help you find the best path forward. Call 817-203-2220 today.

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Turner Thornton
Turner Thornton is a well-known family law attorney in Fort Worth who leads the Varghese Summersett Family Law Group. Turner has successfully guided hundreds of individuals and families through the most trying period of their lives as a skilled negotiator and savvy litigator. Turner Thornton concentrates his practice on family law, including divorce, child custody, contempt, and modification cases. He is experienced in handling estates with significant and unique assets that can be difficult to value. He finds amicable resolutions where possible to conserve his client's resources, but knows how to take the gloves off if the situation calls for it. He has had remarkable results in and outside of the courtroom based largely on his ability and desire to understand his clients' needs and guide them on the pathway to what success looks like for them.

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Nicole Carroll | Senior Counsel

Last Updated on February 12, 2024 by Turner Thornton Nicole CarrollSenior Counsel Nicole Carroll is a highly experienced Southlake family law attorney who serves as

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